Can abandonment be irrevocable?

[Peter Fairbrother]

Resent, because it apparently didn't get through the first time. Hope there
is no double posting.

My first post. Not strictly about licences, but it shouldn't be too OT.

Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998):

"It is well settled that rights gained under the Copyright Act may be
abandoned. But abandonment of a right must be manifested by some overt act
indicating an intention to abandon that right. See Hampton v. Paramount
Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)."

The prime source of this idea is "Nimmer on Copyright"[1], widely quoted in
abandonment cases.

People, including DJ Bernstein, have relied on this as evidence that a
declaration of abandonment is a) effective b) binding on heirs etc c) final
and irrevocable and d) a good way to "free" code.


My question is:

If someone wants to effectively "put code in the public domain", and states
that the code has been abandoned, or that copyright in the code has been
abandoned, can he or his heirs in title later assert ownership, or (re-?)
assert the copyright?




If so, presumably a party that had not already relied on the abandonment
would not be able to rely on it after he became aware of the re-assertion.

And a person whose reliance after the assertion was no more detrimental to
him than being required to licence the code would no longer be able to rely
on the abandonment?



Does the author actually "lose" copyright by abandonment? Lose ownership?
Lose the copyright itself? If so, what happens to it? Copyright exists by
statute until expiry, so afaict it can't just "disappear".

Copyright is a legal, as opposed to a natural or equitable right, and every
text on rights I have read says that legal rights cannot be abandoned.

The defense of abandonment of copyright seems to either fly in the face of
that, or perhaps something else happens? Nimmer says that what happens is
that "The plaintiff's claim of ownership is thereby countered.", but that
does not explain what happens to the author's ownership, or the copyright
itself.

Ianal, so I've probably missed something, like perhaps the author loses the
equitable right of ownership in the legal rights under copyright - but that
also seems to fly in the face of the doctrine that a legal right cannot be
abandoned.

Or perhaps abandonment is just a defence, and the copyright or it's
ownership isn't actually abandoned at all? That the author has just in
effect "waived" the right to enforcement?

Does a declaration of abandonment irrevocably "free" code?

Could a waiver do that? I'm thinking about the 35-40 yaer rule here too.

This is US law, does anyone have any idea what happens in other
jurisdictions? 

Help! I did manage to get the guy in question to BSD-style licence, but
others are still using "abandonment".



[1] §13.06 The Defense of Abandonment of Copyright

            Abandonment of the copyright by the plaintiff or his predecessor
in interest obviously constitutes an effective defense in an infringement
action. The plaintiff's claim of ownership is thereby countered. Despite
imprecise usage in some of the cases, abandonment must be distinguished from
forfeiture of copyright. The latter may occur as a consequence of
publication without proper copyrignt notice3 and is effectuated by operation
of law regardless of the intent of the copyright owner.

            Abandonment occurs only if there is an intent by the copyright
proprietor to surrender rights in his work. There is, moreover, strong
authority holding that an overt act evidencing such an intent is necessary
to establish abandonment.


-- 
Peter Fairbrother


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